About Me

I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

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Saturday, April 01, 2006

The President's "good faith" defense

In its article covering Friday's censure hearing, the New York Times reports:

Several Republicans argued that whatever the legal status of the spying program, it did not deserve punishment because, unlike Nixon, Mr. Bush had acted in good faith.

"This is apples and oranges," Senator Lindsey Graham, Republican of South Carolina, told Mr. Dean. "Anybody who believes that Richard Nixon was relying on some inherent-authority argument is recreating history."

If anything, the Nixon Administration has been less than apologetic about the practice. Last month, in a memorandum filed during the Chicago trial of eight men charged with conspiring to incite acts of violence during the Democratic National Convention, the Justice Department claimed the inherent right to bug or wiretap-without court orders-any time it felt that the "national security" was in jeopardy.

As authority for this broad power, the Government cited the President's oath to "preserve, protect and defend the Constitution" from domestic subversion as well as foreign enemies. Contending that every President since Franklin Roosevelt had permitted such wiretaps, the Government went on to imply that they were even more important now because of the growing violence and rioting in the nation's cities and on its campuses.

Not only did Nixon rely on an inherent authority argument, but he had an infinitely stronger case because Congress had not yet passed FISA. Nice try, though, Senator Graham.

I also want to take a moment to address the emerging "good faith" defense of the President, which is being advanced by Republicans like Senators Graham and Specter who are clearly skeptical of the NSA program's legality. The argument seems to be that while Bush may have acted illegally, he did so based on a good faith belief that his actions were legal, and therefore he does not deserve harsh criticism or Congressional sanction.

I can see why Republicans like Graham and Specter have gravitated toward this argument. It allows them to express their genuine skepticism about the legality of the program without having to criticize the President for authorizing it.

But there's a major problem. Everything the administration has done for the past four and a half years indicates that it does NOT have a good faith belief in its own legal arguments. If Bush administration officials had any confidence whatsoever in their legal theories, they could at any point seek judicial blessing of the NSA program. All they would have to do is try to introduce evidence obtained via warrantless surveillance in court, either in a criminal prosecution or in an application for a FISA warrant. Either move would force the court to address the legality of the NSA program. In the latter context, the administration would have the benefit of being able to present its case ex parte and in secret.

But they are unwilling to do this, and for one simple reason: they are pretty certain they will lose. This paragraph from a U.S. News & World Report story last week is particularly revealing:

White House lawyers, in particular, Vice President Cheney's counsel David Addington (who is now Cheney's chief of staff), pressed Mueller to use information from the NSA program in court cases, without disclosing the origin of the information, and told Mueller to be prepared to drop prosecutions if judges demanded to know the sourcing, according to several government officials.

So they were willing to deceive judges and to drop entire prosecutions rather than test their legal theories in court. If that's not good faith, what is? The article goes on to make the obvious point:

[John] Martin, who has handled more intelligence-oriented criminal cases than anyone else at the Justice Department, puts the issue in stark terms: "The failure to allow it [information obtained from warrantless surveillance] to be used in court is a concession that it is an illegal surveillance."

But that's not the only evidence that the administration doesn't have much confidence in its own legal theories. The administration has worked feverishly to scuttle any further investigation into its activities and to challenge the standing of litigants (like the ACLU) who have sought to have the legality of the NSA program adjudicated in court.

And, perhaps most glaringly of all, there's the fact that the administration's primary legal argument was apparently conceived years after the program was first authorized. It's pretty hard to have a good faith belief in the merits of an argument you haven't even thought up yet. The administration is so confident in the merits of its legal theories that it won't even release the relevant OLC legal opinions, despite repeated requests.

No, despite what "several Republicans" argue, this administration does not and has never had a good faith belief that its legal theories will prevail in court.

But, you may protest, perhaps Bush did have a good faith believe that his actions would help prevent terrorism, even if he knew they were probably illegal. Isn't this a mitigating factor? Sure, if it's true. And for all I know it is. But there are two points we must not lose sight of.

First, because this surveillance is taking place in secret and without judicial review, we have no way of knowing who is actually being spied upon and why. We must simply take the administration's word. But history has shown that a president's word isn't worth a whole lot in this area. Surveillance authority was abused not only by the Nixon administration, but by his Democratic predecessors. The whole point of FISA was so we wouldn't have to take the president's word anymore. Even if you trust Bush to use this power only on terrorists and never on anyone else, can you really say the same about all future presidents?

Second, even if Bush's motives are as pure as the driven snow, it doesn't justify knowingly violating the law, at least outside of very extreme and short-term emergency scenarios. The viability of our system of constitutional government depends on the willingness of our leaders, particularly the president, to take seriously the concepts of separation of powers and checks and balances embodied in our Constitution. Subverting these concepts is dangerous. As John Dean said at Friday's hearing:

I must add that never before have I felt the slightest reason to fear our government. Nor do I frighten easily. But I do fear the Bush/Cheney government (and the precedents they are creating) because this administration is caught up in the rectitude of its own self-righteousness, and for all practical purposes this presidency has remained largely unchecked by its constitutional coequals.